Tuesday, December 14, 2004
We teach our students that like cases should be treated alike. That, after all, is the essence of common law reasoning. But do you ever wonder why they should? No? Then you may be interested in a new paper, Should Like Cases be Treated Alike?, by legal philosopher Andrei Marmor. Click on the link below for the abstract.
Are there any good reasons to treat previous judicial decisions as legally binding in similar cases, just because they aresimilar, even if the underlying reasons of the previous decisions determined the result? I argue in this short essay that this is the relevant question about treating like cases alike, and I offer two possible principles that may ground an affirmative answer: the principle that justice should be seen to be done, and the principle of protected expectations. Both answers are criticized as over inclusive and only partly defensible. Finally, the essay concludes with a suggestion that there are two modes of analogical reasoning in adjudication, and that one of them may rationalize a certain type of cases in which like cases should be treated alike.